That doesn’t suit me… | Anti-suit Injunctions

You are a party or potential party to proceedings in England and Wales.  The other side issues proceedings, on the same subject matter, in a foreign court – maybe to try to gain an advantage where the laws favour them – what do you do?

Don’t panic; you could apply for an anti-suit injunction.

What is it?

An anti-suit injunction is an injunction restraining a party from commencing or continuing proceedings in a foreign court or tribunal.

This may seem a draconian interference with the jurisdiction of foreign courts.  However, an anti-suit injunction is made against the party rather than the foreign court.  It has been observed that this is a distinction without a difference, with some legal commentators labelling it an “English Artifice”; the reality is that an anti-suit injunction will often be recognised by the foreign court, and effectively robs the foreign court of the opportunity to determine its own jurisdiction.

Nevertheless, the English court has the power to grant an anti-suit injunction and it can be an extremely useful tool.

Why do you need one?

There are many reasons why you might prefer to litigate only in England and Wales rather than a foreign jurisdiction.  For example:

  1. you agreed with the other party that the courts of England and Wales would have exclusive jurisdiction over the dispute;
  2. English law is applicable and the English courts are best placed to apply it;
  3. the foreign court might be able to grant relief not available in England and Wales and such relief could frustrate the English proceedings;
  4. the witnesses are based in England and it would be impractical for them to travel to the foreign jurisdiction;
  5. the foreign language (if outside an English speaking country) would be inconvenient and increase costs (for example the costs of translating relevant documents and having translators at the trial);
  6. parallel proceedings in a foreign jurisdiction will inevitably increase costs; and last but not least
  7. you just feel more comfortable with English legal practice and procedure.

An anti-suit injunction gives you the security of litigating in your jurisdiction of choice.  If you are granted one, the opposition will be restrained from commencing or pursuing the foreign proceedings and, if they refuse to comply, they will be in contempt of court and risk fines and / or imprisonment.

When can you get one?

No-one has a de facto right to an anti-suit injunction – it is granted at the court’s discretion.  That said, the English court will generally grant an anti-suit injunction in the following circumstances:

  1. where a party has a contractual right not to be sued in the foreign jurisdiction (e.g. contracts containing exclusive jurisdiction clauses); and
  2. where England is the most appropriate forum for the dispute and the foreign proceedings are vexatious, oppressive or it would be unconscionable for the other party to pursue them.

In relation to point (2), the inconvenience of parallel foreign proceedings is not sufficient to justify granting an anti-suit injunction; you must also persuade the court that the foreign proceedings are vexatious, oppressive or unconscionable.

More Brexit

The UK’s exit from the EU might extend the scope of anti-suit injunctions.

Currently, EU law prohibits the courts of Member States from granting an anti-suit injunction which would restrain a party from commencing or pursuing proceedings in another Member State. There are already rules in place which dictate which Member State particular claims should be brought in.  In the event of a ‘no deal’ Brexit (i.e. no transitional agreements), parties would probably be permitted to apply to the English court for such an anti-suit injunction.

Conclusion

If you face rival proceedings in a foreign jurisdiction, an anti-suit injunction can be a useful tool to ensure the dispute is determined in England, which might be advantageous to you.  You must make the application promptly and before submitting, perhaps inadvertently, to the foreign jurisdiction.

James Clark  is an associate at Grosvenor Law, who practices civil and criminal litigation and is regularly involved in cases with jurisdiction issues.